Kafala
Kafala ( Arabic كفالة, DMG Kafāla ) describes a system of guarantee that is used in the Arab world , but especially in the Arab Gulf states and in some other states in the Middle East, for employees and investors from third countries.
The name for the local guarantor is kafīl /كفيل. There is also a family law form of the kafala, which defines the legal procedure for taking children in Islamic states . A distinction must therefore be made between the forms of Kafala, which affect labor law and business relationships, from Kafala, which in the family law sense describes the assumption of guardianship and guardianship for a child. The kafala in the legal sense relates to labor, residence and family law. However, the term is also used in connection with the restriction of foreign direct investment and business activities.
The system is seen as problematic because it creates relationships of dependency, the abuse of which has been proven. The International Labor Organization of the United Nations judges the Kafala system as underregulated and opaque.
Kafala in the Gulf States and Lebanon
The dependence of the Arab Gulf States on foreign workers is extremely high. In 2015, foreigners made up around 30 percent of the total population in Saudi Arabia , but 70 percent of the workforce. The proportion of foreigners in the total population in Gulf states such as Qatar or Dubai is sometimes higher than 90 percent. According to an estimate by Amnesty International , there were more than 250,000 foreigners living in the Kafala system in Lebanon in 2019, about eight percent of the country's workforce.
The monitoring of compliance with residence and labor laws is partially delegated to the population by means of the Kafala system. This means that every foreign worker needs a local guarantor - usually this is the employer. A local institution (ministries, state-owned companies, universities, etc.) can also act as guarantor, which is especially the case with highly qualified workers.
The surety (Kafīl) is obliged to take care of the entry formalities and the state registration as well as to guarantee compliance with the contractual formalities. For this purpose, the passport of the foreign worker is usually confiscated by the Kafīl and only returned after the end of the contract. The duration of such a contract is usually two to five years. After the contract expires, either the departure or deportation takes place, or the contract is extended by both parties.
See also: Immigrant Labor in the United Arab Emirates , Demography and Labor Migration in Dubai, and Migrant Labor in Qatar .
Problems
While foreign workers for domestic industry, business and administration are in some cases protected by a rudimentary labor law, foreign domestic workers are almost entirely at the mercy of their guarantors and are in a slave-like relationship of dependency. In the comparatively progressive Kuwait , for example, in contrast to “normal” employees, the Ministry of Labor and Social Affairs (which offers migrant workers legal assistance) is not responsible for them, but the Ministry of the Interior.
The Kafala system is legally enshrined in the residence laws of the Gulf States (for example in Saudi Arabia in the Residence Act of June 4, 1952). In contrast to numerous other legal norms in the Gulf States, the Kafala system is not based on rules of Sharia law, but on vaguely defined customary law of the Bedouin tribes . Some questions of this right remain unanswered, such as the precise legal definition of the relationship between the migrant and the kafil.
Low-paid workers from developing and emerging countries in Asia and Africa are particularly affected by the disadvantages of the Kafala system . Workers from the western world are usually not or only slightly affected by the difficulties involved. Migrant workers from other Arab states are dependent on the kafala system, but on average suffer less from it, especially with higher qualifications (e.g. in education or health care) and due to the common language. Household workers from non-Arab and / or non-Muslim countries (especially from Pakistan , India , Bangladesh and the Philippines ) are most disadvantaged.
Signing a contract with non-Arab employees, which usually takes place in their home country, is already problematic. Only documents written in Arabic are valid, as they may differ significantly from the contracts in English or the employees' mother tongue. A state examination of the foreign-language documents and the prosecution of violations remain individual cases despite existing laws.
In the event of a dispute, the kafīl has a strong advantage at all times, as he can arrange for the worker to be expelled . Contract violations (lower or non-payment, longer working hours, no vacation) are therefore rarely reported by the employees, as they fear for their jobs. A legal procedure is possible and also promising in some states, but can still result in dismissal (and thus deportation ), which is why labor law proceedings are much less common than violations of labor law. Likewise, employees are not allowed to change employers without the consent of their guarantor. This also deprives foreign workers of an important part of their negotiating basis, even if they have a comparatively high qualification. Cases of abuse (abuse of power, violence, including sexualized ) against the foreign domestic helpers employed in the Kafala system are not uncommon.
Although it is forbidden for the locals to become kafil for a migrant who they do not employ and who thus “freely” enters the labor market, there is a trade in such licenses, which is mutually beneficial: low dependency on the employee side and an additional income without any effort on the part of the local. The governments of the Gulf states react to this from time to time with waves of arrests and deportations as well as tightening legal regulations (most recently in Saudi Arabia in March 2013).
The kafil is also responsible to the state for being informed about the whereabouts of the employee at all times. Therefore, if necessary, he must report the employee as missing . Cases of runaway domestic workers and other migrant workers who then look for work on the black market are by no means rare due to the abuse in the Kafala system. Due to the high number of unreported cases of missing and illegally employed persons, state amnesties for runaway migrant workers have been issued several times in the past . This should primarily serve to register these people, and then a return to allow.
Kafala in foreign direct investment and business activities
Both the establishment and the acquisition of companies in the Arab Gulf States are subject to restrictions. For example, in Qatar , Kuwait and the United Arab Emirates - outside of designated free trade zones - no company may be owned by more than 49 percent foreign shareholders . In Oman the limit is 70 percent, in Bahrain 100 percent is permitted in certain areas, in Saudi Arabia in all branches of the economy except in the areas of trade and professional advisory services, where only 75 percent are allowed (and, if there is an exclusion list, the foreign Investments in some areas are completely prohibited).
In many cases, a local citizen is required to set up a company who holds the legally prescribed minimum share of equity. If he does this in trust - as a so-called "sleeping partner" - for the foreign investor, the local is often colloquially referred to as Kafīl. Therefore, in some Arab states, in which the Kafala system is often used, there are various legislations that forbid the circumvention of the legal regulations limiting the foreign capital share (so-called "anti cover-up laws" ).
Problems
Because of the only sporadic prosecution of violations, the problem of such cover designs often only becomes apparent when the local shareholder is no longer or does not want to be a “sleeping partner” . This can occur, for example, through the sale of the shares to another local resident, the death of the share partner (heirs take over the shares) or simply through a change of opinion on the part of the "sleeping partner" . The demand for a higher profit-sharing or the right to have a say can sometimes lead to considerable disadvantages in the economic development of the company. If the company shares are limited to 49 percent, the foreign partner has no legal action against such a change in the terms and conditions.
In Saudi Arabia, where the shares owned by foreign investors are subject to different taxation than those held by locals, the foreign investor is also guilty of tax evasion in cover construction as described above .
Point of view of the locals
The kafala system was part of common law even before it was legally established . The historical derivation of this behavior from Bedouin customs is possible, but not guaranteed. In this context, however, it was either part of hospitality or of an agreement that had been made and ensured, for example, the safe stay or crossing of an area ( letter of dispatch ).
What is certain, however, is the current perspective of the locals on this regulation, as expressed, for example, by a woman from Kuwait:
“ Think of it [kafala] as an expression of our fears and our helplessness. We are few, they are many; we cannot afford to trust ourselves. ”
In contrast to what the Kafala legislation might look like, the natives of the Gulf States do not see themselves in an extraordinary position of power. Rather, fears of foreign infiltration , loss of tradition , habits and identity and a feeling of a state of siege predominate . The militarily and numerically comparatively weak Gulf states with their extraordinary wealth express their uncertainty, among other things through extremely asymmetrical legislation, which is significantly increased by the dynamic changes in their environment and society.
Another argument is that as a local you have no way of convincing yourself before entering the country whether the workforce recruited through an agency meets your own expectations - examinations or job interviews are not possible. If expectations are disappointed, especially if the worker lives under their own roof, as is the case with domestic workers, the risk of frustration is very high. In addition, misunderstandings that result from insufficient language skills and sometimes extremely large cultural differences should not be underestimated.
Family law
In family law, the kafala means the obligation of an adult Muslim to look after the maintenance, upbringing and protection of a child and to exercise legal guardianship over that child , just as a parent would for their own child . In contrast to an adoption , the kafala does not establish a relationship, and the child does not become the heir of the guardian. The kafala in family law ends when the child comes of age. However, it can also be canceled beforehand at the request of the biological parents or guardian.
According to the judgment of the ECJ of March 26, 2019 in case C-129/18, a minor for whom a Union citizen has assumed guardianship under the Algerian Kafala rules cannot be regarded as a relative of that Union citizen. The minor therefore has no automatic right of entry into the European Union . However, depending on the circumstances of the individual case, an entry permit as another family member may be considered.
See also
literature
- Shamlan Y. Alessa: The manpower problem in Kuwait. Arab World Studies. Kegan Paul Int., London / Boston
- Anh Nga Longva: Walls built on sand. Migration, exclusion, and society in Kuwait. Westview Press, Boulder 1997
- Hans-Uwe Schwedler: Labor Migration and Urban Change. A study on labor migration and spatial segregation in oriental cities using the example of Kuwait. Reimer, Berlin 1985
- Fred Scholz: Oman and the Arab sheikdoms in the Gulf. Challenges to the future country development. In: Petermanns Geographische Mitteilungen. H. 2, No. 145, 2001, pp. 58-67
- Hergenröther, Keimer, Hundt u. a .: Legal Guide Labor and Social Law Saudi Arabia: Legal tips for the preparation, implementation and termination of employment relationships. AHK Saudi Arabia (ed.), Riyadh 2014
- Hergenröther, Hundt, Villmer u. a .: Business & Legal Guide Saudi Arabia: Legal tips for entering the market. AHK Saudi Arabia (ed.), Riad 2012, pp. 24–26
- Guide des affaires Arabie saoudite . Ubifrance (Ed.), Riad 2012, p. 61
swell
- Laws of the Gulf States on the entry and residence of foreigners
- Laws of the Gulf States on the prohibition of cover constructions ( "anti cover-up laws" )
- Corporate and Investment Laws of the Gulf States
- Kingdom of Saudi Arabia Income Tax Act 2004
- United States Central Intelligence Agency, The World Factbook
Individual evidence
- ↑ a b c Thore Schröder, DER SPIEGEL: Lebanon: How Foreign Workers Suffer From the Kafala System - DER SPIEGEL - Politics. Retrieved June 12, 2020 .
- ^ We want justice for migrant domestic workers in Lebanon. Retrieved June 12, 2020 .
- ↑ Martin Gehlen: No rights in the glittering world. In: Handelsblatt. December 2, 2014, accessed September 14, 2018 .
- ↑ Martin Gehlen: Exploitation behind the glittering facade. In: Der Tagesspiegel. November 30, 2014, accessed September 14, 2018 .
- ↑ KSA goes tough on illegals. March 19, 2013, accessed June 12, 2020 .
- ↑ saudigazette.com.sa ( Memento of the original from September 26, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Saudi Arabia not to extend three-month grace period for illegal expatriates in the country. Retrieved June 12, 2020 .
- ↑ Anh Nga Longva: Walls Built On Sand: Migration, Exclusion, And Society In Kuwait . S. 103 .
- ↑ Press release of the ECJ on judgment C-129/18 of March 26, 2019, accessed on March 31, 2019
